[council] LAST CALL: Draft GNSO Council response on gTLD policy issues in the GAC Copenhagen Communique

Mary Wong mary.wong at icann.org
Tue Apr 25 16:41:33 UTC 2017 

Dear all,

Since no additional comments were received on the document, the Council chairs will proceed to write to the Board today informing them of the Council response and including the notes from Donna and James (below). The hope is that sending the letter today will be helpful to the Board as they meet with the GAC later this week on the Copenhagen Communique.

Thanks and cheers
Mary

From: "James M. Bladel" <jbladel at godaddy.com>
Date: Monday, April 24, 2017 at 15:00
To: "Austin, Donna" <Donna.Austin at neustar.biz>, Mary Wong <mary.wong at icann.org>, Carlos Raul Gutierrez <crg at isoc-cr.org>
Cc: GNSO Council List <council at gnso.icann.org>
Subject: [Ext] Re: [council] LAST CALL: Draft GNSO Council response on gTLD policy issues in the GAC Copenhagen Communique

Donna and Team –

I’m fine with this, and agree we could note your last concern in the transmission letter.  Something along the lines of (borrowing from and expanding upon Donna’s note):

“Additionally, a recurring theme of many of our recent comments are to identify areas in which the GAC’s Communique appears to stray beyond the role of the GAC, or indeed, the mission and remit of ICANN.  While these issues may not have immediate and direct implications for policy development, as representatives of the diverse community of GNSO stakeholders and constituents, the GNSO Council feels compelled to include these concerns in our response to each Communique. In particular, we note our concern with any Advice which conflicts with existing gTLD Consensus Policy or previous Board decisions, expands the role of the GAC or the mission of ICANN, or creates new rights or obligations for GNSO stakeholders outside of the defined Policy Development Process (PDP).  We would welcome a broader discussion with the Board and GAC on this topic in the future.”

Thank you,

J.




From: "Austin, Donna" <Donna.Austin at neustar.biz>
Date: Monday, April 24, 2017 at 13:05
To: Mary Wong <mary.wong at icann.org>, Carlos Raul Gutierrez <crg at isoc-cr.org>, "James M. Bladel" <jbladel at godaddy.com>
Cc: GNSO Council List <council at gnso.icann.org>
Subject: RE: [council] LAST CALL: Draft GNSO Council response on gTLD policy issues in the GAC Copenhagen Communique

Mary, all

Thank you to everyone for their input. I’ve suggested some changes to the language responding to IGOs and 2 Characters with the intent of making the responses a little more focused. I’ve copied my suggested language below for ease of reference.

I’m conscious that in our recent responses we have moved away some from the original intent of providing a GNSO Council response to GAC advice to the Board and I accept this as part of the evolution of this exercise. However, I don’t think it is appropriate for the Council to be telling the Board whether they should accept or reject GAC advice and for that reason I have removed that language from the original text on 2 characters. I also felt that we should be explicit with regard to the 2 character advice that the Board should not be re-opening this discussion after they have passed a resolution and had staff implement accordingly.

On the IGO language, I have re-worked this with Mary’s help, to try to address Heather’s suggestions.

It may also be worth explaining to the Board, in our transmittal letter, that at a meta level the Council is concerned that GAC advice does seem to be straying beyond the new ICANN bylaws and as a result potentially undermining the multi-stakeholder model and disenfranchising the broader ICANN community. As representatives of the stakeholder groups and constituencies that comprise the GNSO, the GNSO Council feels compelled to raise these issues with the Board where they appear as GAC advice. Perhaps this is also a conversation we should have with the Board at some point.

Thanks

Donna

IGO Language:
The GNSO Council refers to its previous response to the Board on this topic, which notes the ongoing work of the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process (PDP) Working Group. The GNSO Council appreciates the opportunity to participate in the facilitated discussion with the GAC at ICANN58, and the good faith dialogue that took place.

In relation to the GAC’s advice to the Board to pursue implementation of:
(i)            a permanent system of notification to IGOs regarding second-level registration of strings that match their acronyms in up to two languages; and
(ii)           a parallel system of notification to registrants for a more limited time period, in line with both previous GAC advice and GNSO recommendations.
The GNSO Council understands that the agreed outcome of the facilitated dialogue session at ICANN 58 was that further input from ICANN on the feasibility of permanent notification to IGOs is required; and that a parallel system of notification to registrants for a more limited time period, is in line with both previous GAC advice and GNSO recommendations.

In relation to the GAC’s advice to the Board to facilitate continued discussions in order to develop a resolution that will reflect (i) the fact that IGOs are in an objectively unique category of rights holders and (ii) a better understanding of relevant GAC Advice, particularly as it relates to IGO immunities recognized under international law as noted by IGO Legal Counsels. The GNSO Council looks forward to continuing, in good faith, the discussions with the GAC and the Board on appropriate next steps, but is concerned that the GAC advice in this instance seems to suggest a predetermined outcome, which the Council believes is premature.

As previously communicated to the Board, the ongoing PDP on IGO-INGO Access to Curative Rights Protection Mechanisms will take into account the GAC’s comments on the Initial Report. The GNSO Council notes that the Working Group is actively reviewing all comments received on its Initial Report, including the comments submitted by the GAC and a number of IGOs.

2 character language:

There should be no opportunity for this Advice to cause the Board to re-open their decision on two letter codes at the second level, as contained in the Board’s resolution of 8 November 2016 and subsequent implementation, which came at the end of a long process that included community consultation and input.

The Council is also concerned that the Consensus Advice contained in Section VI. 4. of the Communique that essentially requires the ICANN Board to negotiate directly, and reach resolution, with individual governments on two letter domain names at the second level is, in our view, inconsistent with the Consensus Advice mechanism found in the ICANN bylaws and as such should not be considered “Consensus Advice”.  The GNSO Council regards this as an unhelpful attempt to sidestep requirements contained in the Bylaws to delegate GAC-equivalent consensus advice to individual GAC members, rather than the GAC as a whole.  We note that this was discussed extensively during the CCWG-ACCT Workstream 1 process and was ultimately rejected.  Bilateralism between the Board and individual GAC members also has the potential to undermine the utility of the GAC itself and is also inconsistent with ICANN’s commitment to the United States Government and other parts of the ICANN Community that the GAC or individual governments would not end up with more power in a post-transition ICANN.


From: council-bounces at gnso.icann.org [mailto:council-bounces at gnso.icann.org] On Behalf Of Mary Wong
Sent: Monday, April 24, 2017 8:00 AM
To: Carlos Raul Gutierrez <crg at isoc-cr.org>; James M. Bladel <jbladel at godaddy.com>
Cc: GNSO Council List <council at gnso.icann.org>
Subject: [council] LAST CALL: Draft GNSO Council response on gTLD policy issues in the GAC Copenhagen Communique

Dear all,

As the Board and GAC will be meeting this Thursday to discuss the GAC Copenhagen Communique, please provide any comments or suggestions on the current draft of the GNSO Council response as soon as possible and preferably no later than 1400 UTC tomorrow (Tuesday 25 April). We are suggesting this deadline as the Council leadership needs to finalize the letter to be sent to the Board the same day noting the gist of the Council’s response.

For your convenience, the latest draft is attached. This contains the edits made by James and the suggestions from Paul (see thread below). Your comments on Issue 2 (IGO names and acronyms) and Issue 4 (two-letter codes) will be particularly welcome as those are the topics on which substantive language has either been provided or requires resolution.

Thanks and cheers
Mary

From: Carlos Raul Gutierrez <crg at isoc-cr.org<mailto:crg at isoc-cr.org>>
Date: Sunday, April 23, 2017 at 08:34
To: "James M. Bladel" <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>
Cc: Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>, GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [Ext] Re: [council] FOR REVIEW/COMMENTS: Draft GNSO Council response on gTLD policy issues in the GAC Copenhagen Communique

James,

sorry for missing the call last Thursday. Here are my personal suggestions to the issues that a focused letter should raise to the board before their meeting with the GAC based on comments of the drafting team so far:


1. In the case of the Red Cross et. al., the Copenhagen mediation by a former Board member made a clear Board resolution possible! The GNSO council looks forward to a revision of the policy based on this resolution, as the international law basis for the Red Cross et.al[et.al]<https://urldefense.proofpoint.com/v2/url?u=http-3A__et.al&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=TseDXXOR-59M_1ncIXDZ4zK87ZZC-IzNhROgv_QtNkI&s=NB1B4pDwoNZGVxDt4TGRbbQAnE7dzTh4IBWeXfWRU4w&e=>. can be considered rather homogeneous.



2. In the case to the IGOs, The GNSO’s IGO-INGO Curative Rights Policy Development Process Working Group is actively reviewing all comments received on its Initial Report, including the comment submitted by the GAC. It remains clear from the mediation efforts during the Copenhagen meeting, that there is still the expectation in the Council that the Boards owes the GNSO community a clear resolution to direct future efforts in an efficient way forward, as was the case with the Red Cross et.al[et.al]<https://urldefense.proofpoint.com/v2/url?u=http-3A__et.al&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=TseDXXOR-59M_1ncIXDZ4zK87ZZC-IzNhROgv_QtNkI&s=NB1B4pDwoNZGVxDt4TGRbbQAnE7dzTh4IBWeXfWRU4w&e=>.



3. In the case of the delegation of 2-letter codes, some members of the Council will like to raise serious concerns to the Board, of the impact that bilateral case by case resolution with Governments could have on the principle of bottom-up policy development of ICANN. Instead of developing a consensus position that all GAC members have agreed with, the Consensus Advice mechanism found in the bylaws is being circumvented to order the ICANN Board to negotiate with, and presumably reach agreement on, each government’s individual demands.  This should not be considered proper “Consensus Advice”, but could rather be considered an attempt to circumvent the very clear threshold for the GAC to issue “Consensus Advice”.



4. In the case of the Mitigation of the DNS abuse, the GNSO Council refers to its input to the Board regarding the GAC’s Hyderabad Communique on this topic, and reiterates the concerns it stated in that response: https://gnso.icann.org/en/drafts/review-gac-communique-15dec16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_drafts_review-2Dgac-2Dcommunique-2D15dec16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=TseDXXOR-59M_1ncIXDZ4zK87ZZC-IzNhROgv_QtNkI&s=r9GlFY9q-by9JdnBqZ9ugGNWTNV2YiMK2C0xKKoGeis&e=>.

I hope it helps.


Carlos Raúl Gutiérrez
ISOC Costa Rica Chapter
skype carlos.raulg
+506 8837 7176
________
Apartado 1571-1000
COSTA RICA

On Fri, Apr 21, 2017 at 2:04 PM, James M. Bladel <jbladel at godaddy.com<mailto:jbladel at godaddy.com>> wrote:
Councilors –

Please see attached for a revised version of this comment document.  Note that due to a configuration error, I appear as both “James Bladel” and “Microsoft User”.   I’ve attempted to clarify existing comments, but I believe we still have some work to do in item #2 (IGO Protections).  I’m good with the other elements of the comment.

As we are attempting to hit a short deadline, please review and provide your comments as soon as possible.  I will then work with Staff to (a) restructure this document in the form of a letter that can be sent to the Board and (b) prepare a new formal motion for consideration at or before our next meeting.

Thank you,

J.


From: <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> on behalf of Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Date: Friday, April 21, 2017 at 10:18
To: GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [council] FOR REVIEW/COMMENTS: Draft GNSO Council response on gTLD policy issues in the GAC Copenhagen Communique

Dear Councilors,

As discussed on the Council call yesterday, please find attached the current draft of a possible GNSO Council response to the gTLD policy issues raised in the GAC’s Copenhagen Communique. Staff had taken the liberty, when assisting the group of Council volunteers on this effort, of inserting certain comments and suggestions that are also reflected in the document.

Please review the document and send your comments and suggestions to this mailing list. As noted on the Council call, the Board’s call with the GAC on the Communique is scheduled for 27 April, so it will be ideal if the Council chairs are in a position to send a note generally highlighting the Council’s views before that date, with a view toward formal Council adoption of the final text at the Council’s next meeting in mid-May.

Thanks and cheers
Mary

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